January 11, 2016

Adam Liptak reports on the oral argument this morning in Friedrichs v. California Teachers Association, a case — it should be noted — about public-sector unions.

“The problem is that everything that is bargained for with the government is within the political sphere,” [Justice Scalia] said.

That's important, because under the precedent, "the Supreme Court made a distinction between... [f]orcing nonmembers to pay for a union’s political activities... [and r]equir[ing] nonmembers to help pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.” But if it's all political activity, as it arguably is with a public-sector union, then there's a First Amendment right not to be forced to pay for any of it.

93 comments:

I am a member of three teachers unions (local, state, national) by fiat. At one time I was my site's rep, because no one else would take the job. I have personally benefited because I am a union member.

All of that being said, I am philosophically opposed to government employees being allowed to join a union.

It's a pet peeve of mine when people are talking about public sector unions and they talk as though we are about to go back to the days of 20 hour workdays in the mines and child labor if the government sector union does not get to force people to pay dues for them. If there's a good defense of a public sector union's practice, then make it--otherwise, you're being irrelevant.

"if it's all political activity, as it arguably is with a public-sector union, then there's a First Amendment right not to be forced to pay for any of it." 'Arguably"? As Gahrie already said, following FDR, government employees should not be allowed to mobilize or bargain against the public and corrupt public officials in doing so.

I've always wondered why it was a natural assumption a labor union was a better negotiator than every individual. A young exceptional teacher would be better served on his own rather than suffering with the seniority bias of a big labor contract.

I fully support people's freedom of association right to join a union ( including public sector unions ). Or to not join. The union should have the right to collect dues from its members, and nobody else. The union should have the right to negotiate for its members, and nobody else. The union may not negotiate any sort of closed shop requirement. ( Just as a non-union member could not negotiate with their employer to exclude union members from being hired. )

"All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management." - Franklin D. Roosevelt

I think the argument that the pro-public sector union side is making is that the workers who choose not to pay the union dues will be “free riding” off of the “benefits“ (e.g. higher wages, benefits, work rules, etc.) that the union provides since it probably won’t be able to distinguish between union and non-union employees in a practical way.

I understand the “free rider” argument but I think it’s problematic to charge someone for a “service” that they didn’t ask you to provide particularly when the “benefits” may not be worth what you’re seeking to charge them.

For example, if I’m a single employee with no children and the union put its focus into negotiating for a more generous paid maternity leave, it’s hard to see that as a “benefit” that I should pay for. Particularly when the end result is that workers who decide to have children will be more likely to be gone from the workplace and I’ll be expected to cover their workload while they’re out.

You are correct, the current system is a blow to workers who do not want their money forcibly taken by a union that does not represent their interests. That is why the workers sued. Hopefully the Supreme Court will side with the workers and not require them to pay agency fees.

It's not that a labor union would be a necessarily better negotiator, but that the employer being negotiated with is the government and elected officials. When you are also primarily responsible for electing the party you are later negotiating with, they will be in your debt and not negotiate in the best interests of the people.

The primary outcome of this has been drastically unfunded pensions. Oh, and Social Security and Medicare - which are correctly termed Ponzi Schemes that if attempted in the private sector would land those involved in federal prison.

I don't object to the right to collective bargaining, whether public or private sector. I do think that a union has to earn its membership, though. If I'm not mistaken, this case concerns a teacher who is more interested in a reduced class size than a higher salary? That would be one of the best arguments I've heard for not being required to pay dues. (What is the counter to that, anyone?) Ignorance Is Bliss summed it up well at 12:38 PM today. I do not like the idea that a union is supposed to represent everybody whether union or nonunion, either.

Someone smarter than Garage (such as a chew toy, a moderately worn sock, or perhaps a dessert plate) would wonder whether this easy remedy should also be applied to people demanding a minimum wage. Garage, alas, will continue to confuse workers and unions.

Reagan was at a 1980 campaign rally specifically talking about Lech Walesa's Solidarity Trade Union in Poland which featured work stoppages against the Commies. One year later, Dutch fired 11,000 PATCO air traffic controllers for an illegal strike by federal employees that "imperiled public safety."

Because of restrictive contract work rules and unethical, often illegal, actions on the part of unions, it is no wonder that only 11% of all workers are paying dues. It is significant that more than 80% of union members now work in government-paid jobs where strikes are prohibited. Just move on, because nothing political is happening here!

The "free rider" argument would be moot if unions were not required to represent those who chose not to join. Perhaps its time to revisit labor law so that's not the case?

In any case, claiming there's a real choice to not join the union in non-RTW states is disingenuous, as the difference in price between "agency fees" and full union dues is often trivial, and if you don't pay full dues you'll still have to work under whatever terms the union negotiates, but you'll no longer have any say in what the union does.

Paying mandatory agency fees seems very much like paying taxes, yet if unions are not governments then why do they have the authority to tax? If my neighbor mows my lawn after I've asked him not to, should I be obligated to pay for the "service" (especially if he also mowed my garden because he figured my yard would be better without it)?

The "free rider" argument doesn't make any sense. It's true the unions have a free rider problem, but why has government taken it upon itself to solve their problem?

The government creates the free-rider problem. The NLRA* requires unions to represent all workers in the worksite/job category that the union covers. Union members occasionally trot out this fact to argue that Right to Work laws are unfair. What they never mention is that the unions vigorously oppose changing the law to remove the requirement that they represent non-members too, as that would reduce their overall power.

*I don't remember, but public sector unions might be covered by a different law with a similar provision.

As is usually the case, pro-union people (here represented by garage) seem to live in some kind of alternate reality. Their comments rarely make any sense to those of us who hold regular jobs from which we can be fired at any time, and are okay with that. That is, the other 85% of the American people. Join the club, union workers! It isn't that bad; for some weird reason, our employers don't fire us on a whim very often.

A corporation can poison the water of a Republican, make them pay to clean it up, and rely on the Republican and their abject stupidity to fight for their right to continue to do so. It's as if Republicans just don't hold jobs.

I nominate "Pookie Number 2" to assign our working hours and collect from "garage mahal" his dues for our Correcting Stupidity Union. After all, he is the founding member.

I'll get right on that, although based on his comments, Garage Mahal seems too stupid to have any money.

For example:

A corporation can poison the water of a Republican, make them pay to clean it up, and rely on the Republican and their abject stupidity to fight for their right to continue to do so. It's as if Republicans just don't hold jobs.

I think somewhere in Garage's rather unevolved brain, he's been made aware of the damage that Democrats do to minorities. This particular incomprehensible mess of a paragraph, bereft as it is of logic and coherence, seems to be a typically feeble attempt to project this sort of damage on Republicans, which is what the partisan unintelligent (around these parts, we call them "Garages") tend to do.

Apparently that's easier than distinguishing between 'unions' and 'workers', which is just too much of a cerebral stretch for Garage.

I propose formation of the FABC, Federation of Althouse Blog Commenters. Membership and dues will be compulsory. 100% of dues will be assigned to candidates selected by a majority vote of the membership, and if garage doesn't like it, he can go comment at little green footballs

If I were a worker in a union shop, i would prefer to negotiate my own deal"Pay me $1 an hour more than the union workers. In exchange, you can fire me any time you want for any reason." Most employers would jump at that offer, and most employees would make the same offer, destroying the union. Therefore, unions demand laws that say they must represent all workers.

GarageA corporation can poison the water of a Republican, make them pay to clean it up, and rely on the Republican and their abject stupidity to fight for their right to continue to do so. It's as if Republicans just don't hold jobs.

Sort of like our EPA and poisoned rivers. Is that what you were thinking?

Garage whispered:A corporation can poison the water of a Republican, make them pay to clean it up, and rely on the Republican and their abject stupidity to fight for their right to continue to do so. It's as if Republicans just don't hold jobs.

I was a coerced member of the teachers' union. At one point my union negotiated a contract that cut the pay of anyone with less than 5 years of experience in exchange for a raise for people nearing retirement. The older folks tried to convince the younger teachers it was a good deal or them, too, because it would mean a higher retirement pension. There was a mass exodus of newer teachers from the school system, and many of the teachers leaving left teaching all together. The response from the older teachers- "Teaching isn't about money. If they were dedicated to the profession, they would have stayed and waited their turn."

I am deeply skeptical of this case. Not because I have any affection for Abood, mind you, but because I am not at all sure that the First Amendment applies to this case in the first place. When the government relates to a person not as their government but as their employer, we should treat it as an employer, not the government; think of the Garcetti case, for example. The California rule at issue is essentially a rule of employment that happens to be embodied in a statute rather than an HR directive. While I realize that this isn't the ground on which the case has been argued (although at least one amicus raises the point), it does make me reluctant to overule Abood when the unions would win under a correct approach anyway.

Chuck is correct - when Walker said FDR opposed government employees unionizing, Walker was right.

And we Madisonians know what happened with Act 10. Worse abuse (and I know of hundreds) I heard of was a Monroe WI Elementary School with a List of students' parents who donated to Walker posted in their faculty lounge.

I predict SCOTUS will come down against the teachers' unions (and other government unions) as I heard what Kennedy brought up....Whoever writes this book about the death of the teacher unions in USA really ought to give Scott Walker some credit.

If unions are really as wonderful as they are said to be, they should end up keeping most of the members and keep most of the dues coming even should they lose this case. The only possible way a public union should be worried is if they suspect they will lose a lot of members and a lot of money should they lose the case. But that begs the question, why do they suspect they will lose a lot of members?

Oddly, should unions lose, one thing that may hurt their membership is the number of benefits protected in state constitutions...which kind of reduces their value. If the pension is already constitutionally protected, you don't need the union for that. And with Obamacare, you don't need the unions for healthcare. Which doesn't leave a whole lot of other stuff to negotiate over, unless anybody thinks that public employers are suddenly about to get very stingy with days off or other ancillary benefits.

And Garage, unions are organisms that feed on production. (Please note, if you can't distinguish between "labor" and "production" you probably lack the capacity to distinguish between masturbation and intercourse.)

"I've always wondered why it was a natural assumption a labor union was a better negotiator than every individual. A young exceptional teacher would be better served on his own rather than suffering with the seniority bias of a big labor contract."

It doesn't matter how good a negotiator any given individual is--and many individuals are not good negotiators for themselves--if the organization the individual hopes to negotiate with refuses to bargain. The individual has no power to influence the organization's decisions regarding pay, working conditions, hours, etc., etc. (You know, sort of like a king and his subjects...a lone individual challenging the king will simply be banished from the kingdom, or cast into a dungeon--or hanged or beheaded--while a group of the king's subjects, working together to petition the king for relief from their grievances--or from the king--have somewhat better chances of achieving at least some of what they want.)

I fully support people's freedom of association right to join a union ( including public sector unions ).

Disagree vehemently. Nobody on EITHER side has THEIR money specifically on the line. The government officials get donations from the unions to give away other people's money and to protect them. The unions get their benefits for their donations.

Why should they have to work somewhere else? Provide any legal justification for forcing somebody to join a union to get a job.

N9t sure of other states, but in Wisconsin nobody was ever forced to join a union. Not one. That's just of many Republican lies.

They just had to pay. Big difference. Using your logic, you went ape shit over Act 10 for, literally, no reason whatsoever.

A corporation can poison the water of a Republican, make them pay to clean it up, and rely on the Republican and their abject stupidity to fight for their right to continue to do so. It's as if Republicans just don't hold jobs.

You misspelled EPA there.

And I'd buy the need for unions being needed if the government didn't have more people lose their job due to dying than due to being fired. Or one can argue that the government is perfectly competent and perfectly efficient and nobody is extraneous.

"For example, if I’m a single employee with no children and the union put its focus into negotiating for a more generous paid maternity leave, it’s hard to see that as a 'benefit' that I should pay for. Particularly when the end result is that workers who decide to have children will be more likely to be gone from the workplace and I’ll be expected to cover their workload while they’re out."

?????

How are you "paying" for that benefit? When one is a union member, one pays dues to help fund the union's functioning. There is no a la carte dues-paying, where each and every benefit the union negotiates for its members requires specific additional dues payments. One is paying dues for the whole of the work does and benefits provided by the union for its members; if some members use benefits that others don't use, it's not costing any of them any more than they would be paying in dues otherwise. If one is single now, it's possible one may be married in a year or five or ten. One day the once-single union member may need to make use of the paid maternity leave benefit his or her union negotiated way back when he or she was young and single.

I suppose you think a childless member of a community should be exempt from paying taxes intended for the local public school system, eh?

It doesn't matter how good a negotiator any given individual is--and many individuals are not good negotiators for themselves--if the organization the individual hopes to negotiate with refuses to bargain. The individual has no power to influence the organization's decisions regarding pay, working conditions, hours, etc., etc

So you believe that teachers have nothing of value to offer schools? I guess I have a higher opinion of teachers than you do.

You said that "The individual has no power to influence the organization's decisions regarding pay, working conditions, hours, etc., etc." In the case of teachers, either that's because they have nothing of value to offer, or the political types that make employment decisions in the current educational system don't appreciate value.

You may well have meant the latter - it's certainly true, and yet another inevitable unfortunate consequence of bureaucratic decision-making.

You said the individual has no power to influence the organization's decisions. But the individual has the power to withhold their labor. If the school wants that labor, they have to offer compensation that the individual is willing to work for.

The only way they would have no power is if their labor was of no value to the school.

Maybe you meant that they have no power to force the school to pay above-market rates for their labor. That would be true.

You're aware that benefits aren't free, right? Every benefit has a cost attached to it.

One is paying dues for the whole of the work does and benefits provided by the union for its members; if some members use benefits that others don't use, it's not costing any of them any more than they would be paying in dues otherwise.

If you're paying the same whether you want it or not, you're not making a solid argument for the need for paying dues. If I clean your house and demand you pay me, even if you don't ask me to clean your house, I've hardly done you a service.

If one is single now, it's possible one may be married in a year or five or ten.

Then it will be worried about then.

Also, just so you know, that reasoning was why insurers didn't cover birth control for years.

One day the once-single union member may need to make use of the paid maternity leave benefit his or her union negotiated way back when he or she was young and single.

...and if they don't?

What about the unions who seek to punish younger employees to benefit the older?

You are aware that Robert Cook does not believe in The Dismal Science of economics. As a collectivist Robert Cook does believe there is a free lunch; if only the right people were in charge, this time it will be different.

Robert Cook, in the hypothetical given, the single, childless union member is paying dues that are being used to negotiate better working conditions for OTHER people. The union has taken his money and used it to help negotiate a contract that is less favorable for the individual employee described in the hypothetical.

In the real-world example given by another commenter, the older teachers in the union used their control over the union machinery to negotiate a contract that benefited them at the expense of the younger teachers. The union did not negotiate better working conditions for all employees, but preferential treatment for the older teachers with more seniority. Do you believe that is fair, and that the only recourse the negatively-impacted younger teachers should have is leaving the profession altogether, or accepting the disparate treatment until they gain enough power within the union to change the results?

More generally, the individual DOES have the power to influence what the pay and other working conditions offered by the employer. If the employee quits, because the job doesn't pay well enough, there is a cost to the employer. He must expend resources to find another employee willing to do the job for the offered pay and conditions, and risk not having the work done if he can't find such an employee. if the conditions are truly terrible, then the business won't be able to find enough employees and they will go out of business.

Now, I'm speaking generally, not in absolutes. Certainly their are examples in history where local economic conditions were so depressed (coal mining territory comes to mind) that employees had few realistic options other than to accept substandard wages and dangerous working conditions, because the costs of moving to another region of the country were so high.

But we're not living in those times. NOW, today, unions in this country are a major drag on productivity that focus primarily on political issues rather than real working conditions.

"Robert Cook, in the hypothetical given, the single, childless union member is paying dues that are being used to negotiate better working conditions for OTHER people. The union has taken his money and used it to help negotiate a contract that is less favorable for the individual employee described in the hypothetical."

No, the union is taking each member's dues and negotiating for pay and an array of benefits for all of its members. This does not mean that every member needs or will avail himself of each and every benefit negotiated for and this does mean that those who don't need every benefit included in the contract provisions are receiving a contract that is less favorable to them. By definition, a contract made for a cohort of workers cannot be tailor-made to each individual within the cohort. (In the same way, we cannot pick and choose how our tax monies are allocated; they just go into a big pool and are spent as the tax collecting government body deems necessary and appropriate. Not every taxpayer needs or will benefit by everything the taxes are used to fund, but the community as a whole benefits.)

"In the real-world example given by another commenter, the older teachers in the union used their control over the union machinery to negotiate a contract that benefited them at the expense of the younger teachers. The union did not negotiate better working conditions for all employees, but preferential treatment for the older teachers with more seniority. Do you believe that is fair, and that the only recourse the negatively-impacted younger teachers should have is leaving the profession altogether, or accepting the disparate treatment until they gain enough power within the union to change the results?"

This is not fair or desirable. I don't know the particulars of this case, but with the ongoing and unceasing war against all unions in this country, some unions are making the unfortunate--but sometimes possibly unavoidable--decision to agree to contracts with such staggered pay and benefit levels simply in order to get a contract at all.

"More generally, the individual DOES have the power to influence what the pay and other working conditions offered by the employer. If the employee quits, because the job doesn't pay well enough, there is a cost to the employer. He must expend resources to find another employee willing to do the job for the offered pay and conditions, and risk not having the work done if he can't find such an employee. if the conditions are truly terrible, then the business won't be able to find enough employees and they will go out of business."

In case you hadn't noticed, large employers have no compunction letting workers quit--or even firing great masses of workers--in order to pump up their bottom line. Even successful and profitable employers cut benefits and slash payrolls in order to enhance their stock prices, profiting those running the company at the expense of their workers. Individual employees have very little to zero power to compel an employer to pay him or her any more than the employer decides it is willing to pay.

Now, I'm speaking generally, not in absolutes. Certainly their are examples in history where local economic conditions were so depressed (coal mining territory comes to mind) that employees had few realistic options other than to accept substandard wages and dangerous working conditions, because the costs of moving to another region of the country were so high.

"But we're not living in those times."

We ARE living in those times. In fact, we're headed toward becoming a third world economy. We're facing the possibility of another catastrophic recession this year, (and we've never really recovered from the 2008 crash). Jobs have been eliminated by automation or off-shored by the hundreds of thousands over the last couple of decades, and this will continue. Real unemployment in this country has been estimated at about 22%, (not the false figures of 5% or so proffered by the government, which redefines "unemployed" to arrive at a fabricated low rate of unemployment). To the extent jobs are to be had, the great majority are in low-paying no-benefits service jobs, (clerks, food servers, bartenders, etc.).

Most of us are living as if the life we got used to in America these last few decades will continue forever, and that life is already disappearing, not to return. Expect things to get worse.

I taught in public schools, as a second career, for nine years. I had a two year leave of absence that I spent in graduate school upgrading my teaching certificate. So that was 11 years of exposure to the culture of the education establishment. I didn't have to join a union. There were two that I could have joined but it wasn't required. I didn't because I didn't want to pay the dues or go to any more meetings than I had to. Much of what many people blame on teacher's unions, i.e., tolerance of incompetent teachers, political correctness, anti-Christian religious bias and anti-conservative political bias in the classroom and principal's office are not the result of unionization. They are the result of the culture of the education establishment that is promulgated by the colleges of education in our universities, throughout the nation. To correct the problem, you have to start there. Unions only make it worse.

Tell you what, since no one around here and no big businesses know how to do it "right", why don't you tell us of the business(es) that you have started and are successful and employing lots of people and paying them great salaries and giving them great benefits.

If fact, as you know how to do it "right" and have demonstrated through your actions that you do, why not write a book explaining this to everyone else so that we all can enjoy the wisdom and experience that you have gained running large and successful businesses!

What, what? You are not running large and successful businesses that employ lots of people? Oh, never mind...

"You are not running large and successful businesses that employ lots of people?"

You're behind the times. Today, to run large and successful businesses, the required operating principle is to employ ever fewer and fewer people, and to the extent employees must be retained, to employ more people in foreign companies where the pay scale is below the American living wage, and as few as possible domestically. To the extent domestic employees must be retained, redefine them as "independent contractors," or hire permanent temps--temp workers who are kept in their assignments for years--so that no benefits are required and the pay rates are inconsistent with maintaining what is considered a middle-class standard of living.